Zezula v Brown
Key claim: A governmental agency cannot be sued for monetary damages in circuit court for violating the MISS DIG Underground Facility Damage Prevention and Safety Act; the exclusive remedy that avoids governmental immunity is a complaint filed with the Michigan Public Service Commission.
Abstract
Michigan Supreme Court opinion decided 2026-06-16. Michigan Supreme Court Lansing, Michigan
Syllabus Chief Justice: Justices: Megan K. Cavanagh Brian K. Zahra Richard H. Bernstein Elizabeth M. Welch Kyra H. Bolden Kimberly A. Thomas Noah P. Hood
This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions: prepared by the Reporter of Decisions for the convenience of the reader. Kimberly K. Muschong
ZEZULA v BROWN
Docket No. 168483. Argued March 12, 2026 (Calendar No. 4). Decided June 16, 2026.
Plaintiff, Brian Zezula, filed a negligence action in the Oakland Circuit Court against
defendants, Nina Brown, DTE Energy Company, Kaltz Excavating Co., and Independence
Township, seeking to recover for property damage that occurred when a damaged sewer line
caused sewage to back up into his house. After Brown complained to DTE about faulty electrical
service to her neighboring home, DTE hired Kaltz to bore a new underground electrical
connection. Kaltz notified MISS DIG Systems about the intended excavation, which in turn
notified Independence Township and other underground facility owners of the construction.
Independence Township responded, “NO CONFLICT,” indicating that it did not own any facilities
in the excavation area and therefore did not mark any sewer lines. In December 2020, Kaltz bored
the new electrical service, resulting in the asserted damage to Zezula’s home. Relevant to this
appeal, Zezula sought to hold Independence Township liable for allegedly not marking township-
owned sewer lines as required by the MISS DIG Underground Facility Damage Prevention and
Safety Act (the MISS DIG Act), MCL 460.721 et seq.
Independence Township moved for summary disposition, asserting that it was entitled to
governmental immunity under MCL 691.1407(7) of the governmental tort liability act (GTLA),
MCL 691.1401 et seq. Independence Township further argued that the events at issue did not meet
the GTLA’s sewage disposal system event (SDSE) exception to immunity, MCL 691.1416 through
MCL 691.1419, and that Zezula had failed to provide notice of an SDSE event as required by MCL
691.1419. Zezula opposed the motion but did not address Independence Township’s notice
argument. At oral argument on the motion, Zezula asked the trial court to allow him to amend his
complaint if the court determined that additional pleading was necessary to avoid governmental
immunity. The court, Cheryl A. Matthews, J., denied Independence Township’s motion, reasoning
that the GTLA created a broad exception to governmental immunity for violations of the MISS
DIG Act. It also granted Zezula leave to amend to allege a claim under the SDSE exception and
held in abeyance the question of whether Zezula had given proper notice. Independence Township
appealed. In a published decision, the Court of Appeals, K. F. KELLY and YOUNG, JJ. (BOONSTRA,
P.J., dissenting), affirmed the trial court’s order. ___ Mich App ___ (March 11, 2025) (Docket
No. 368261). Independence Township sought leave to appeal, and the Supreme Court granted the
application. ___ Mich ___; 25 NW3d 333 (2025).
In a unanimous opinion by Justice THOMAS, the Supreme Court held:
A governmental agency may not be held civilly liable for monetary damages for a violation
of the MISS DIG Act under MCL 691.1407(7). Instead, MCL 460.732 of the Act provides the sole avenue for relief that avoids governmental immunity: a complaint filed with the Public Service Commission. Accordingly, the trial court erred by denying Independence Township’s motion for summary disposition as to Zezula’s claim under the MISS DIG Act. The trial court additionally erred by prematurely granting Zezula leave to amend his complaint to allege avoidance of governmental immunity under the SDSE exception before Zezula alleged compliance with the exception’s notice requirement.
1. MCL 691.1407(7) does not authorize a claim in circuit court for monetary damages
against a governmental agency. MCL 691.1407(7) states that the immunity provided by the GTLA does not apply to liability of a governmental agency under the MISS DIG Act. The scope of this limited exception to governmental immunity is defined by the MISS DIG Act. Relevant here, MCL 460.732(1) of the MISS DIG Act states that, except as provided in MCL 460.732, the Act does not affect the liability of a governmental agency for damages for tort or the application of the GTLA. MCL 460.732(2) states that a facility owner or a facility operator may file a complaint with the Public Service Commission seeking a civil fine and, if applicable, damages from a governmental agency for any violation of the MISS DIG Act. Under MCL 460.732(3), if such a complaint is filed and a hearing is held, the Public Service Commission may impose escalating penalties against a governmental agency that violates the MISS DIG Act. Accordingly, a Public Service Commission complaint process is the sole avenue for relief that avoids governmental immunity. MCL 460.728, which generally provides that the MISS DIG Act does not limit the recovery of damages or equitable relief in civil actions, does not address civil actions against governmental agencies, and reading it to apply to governmental agencies would render MCL 460.732(1) superfluous. The trial court therefore erred by denying Independence Township’s motion for summary disposition as to Zezula’s claim under the MISS DIG Act.
2. The trial court erred by prematurely granting Zezula’s oral request to amend his
complaint to plead under the SDSE exception. MCL 691.1419(1) prohibits a plaintiff from recovering compensation under that exception unless the plaintiff notifies the governmental agency of a claim of damage, in writing, within 45 days after the date the damage was discovered. MCL 691.1419(2) provides that if a plaintiff notifies a governmental agency’s contacting agency of an event before providing notice of a claim that complies with MCL 691.1419(1), the contacting agency must provide the plaintiff with information on how to satisfy the notice requirement. If the agency fails to provide the required information after being notified of the event under MCL 691.1419(2), the plaintiff might not be barred from bringing a civil action against the governmental agency; however, the plaintiff must show both that they provided notice of the event under MCL 691.1419(2) during the period for giving notice under MCL 691.1419(1) and that the failure to comply with the notice requirement of MCL 691.1419(1) resulted from the agency’s failure to provide the required information. Zezula did not assert a claim under the SDSE exception or assert in the trial court that he provided the requisite SDSE exception notice or was excused from doing so. In addition, he did not respond to Independence Township’s preemptive argument that he failed to provide notice. In light of the alleged lack of notice and Zezula’s failure to respond to Independence Township’s argument, the trial court could not properly determine whether amendment to plead under the SDSE exception would be futile
Why this matters
Property owners hit with sewage backups or other underground-utility damage caused by a municipality’s MISS DIG noncompliance now have a narrower path to recovery: they must file with the Michigan Public Service Commission rather than sue for damages in circuit court. For municipalities and drainage districts, the ruling reduces exposure to tort-style damages awards for utility-strike incidents, while shifting the enforcement forum to an administrative body.